Cain and Australian Postal Corporation
[2000] AATA 995
•14 November 2000
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2000] AATA 995
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/176
GENERAL ADMINISTRATIVE DIVISION )
ReJAMES NOEL CAIN
Applicant
AndAUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
TribunalDeputy President J Block
Dr MEC Thorpe, Member
Date14 November 2000
PlaceSydney
DecisionThe decision under review is affirmed.
……[J Block]…….. ……[Dr MEC Thorpe] ……..
Deputy President Member
CATCHWORDS
Injury to lower back in 1982 – further injury to lower back in 1988 – leg injury and referable to back injury – whether injuries reached the minimum threshold required to establish permanent impairment
Safety Rehabilitation and Compensation Act 1988 - s24, s27 and s48
Administrative Appeals Tribunal Act 1975 – s37
Comcare Guide to the Assessment of the degree of permanent impairment (GARP)
REASONS FOR DECISION
Deputy President J Block
Dr MEC Thorpe, Member
Part A : Preliminary
(a) The Applicant seeks the review of a decision made by the Respondent on 16 December 1999, (affirming an earlier decision made 22 October 1999) disallowing a claim for permanent impairment by the Applicant in consequence of injuries to his lower back in 1982 and 1988 and resulting (so far claimed) in injury to his right leg.
(b)The Tribunal had before it the T Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, together with Exhibits as follows:
· Exhibit A1 – Applicant's Motor Accident Personal Injury Claim Form;
· Exhibit A2 – New South Wales Compensation Medical Certificate;
· Exhibit A3 – Letter from Australia Post dated 10/10/00;
· Exhibit A4 – Workplace Assessment by Heydi van Mourik – Occupational Physiotherapist dated 15/05/98;
· Exhibit A5 – Letter by Dr I Meakin dated 15/6/00;
· Exhibit A6 – Letter by Dr I Meakin dated 16/5/00;
· Exhibit R1 – Copy of report by Dr Davies dated 19/7/00 (5 pages);
· Exhibit R2 - Copy of report by Dr Davies dated 19/7/00 (1 page);
· Exhibit R3 – Copy of report by Dr Davies dated 13/9/00;
· Exhibit R4 – Copy of report by Dr L Hughes dated 9/5/00.
(c)The Applicant was represented by Mr John Graham of Counsel instructed by Jones Staff & Co solicitors, while the Respondent was represented by Mr G T Johnson of Counsel instructed by Barker Gosling solicitors.
We propose to deal with this matter in points. This first Part A relates to preliminary matters, and includes a brief overview. Part B relates to the evidence of the Applicant, while the medical evidence is dealt with separately in Part C. (Oral medical evidence was given by Dr Ian Meakin, called by the Applicant and Dr L Hughes, called by the Respondent). Part D is a brief conclusion.
The T Documents indicate that the Applicant has suffered a number of injuries while working for the Respondent having commenced work with the Respondent in August 1982. In this context:
(a) In October 1982 the Applicant injured his back when he lifted a heavy bag of mail; he again injured his back in July 1988 when he slipped on wet tiles. The Applicant has received compensation in respect of both such injuries.
(b)In August 1983 the Applicant claimed and received compensation in consequence of an injury to his left back. (T4)
(c)In March 1984 the Applicant claimed and received compensation for an injury to the right side of his lower back. (T5)
(d)In January 1985 the Applicant claimed and received compensation for an injury to his right ankle. (T6)
(e)In July 1988 the Applicant claimed and received compensation for an injury to his right hip and shoulder.
(f)In June 1999 the Applicant was involved in a motor accident which resulted in injury to his neck. An action was brought by the Applicant against the Government Insurance Office of NSW which resulted in a settlement, and in consequence of which the Respondent received a refund of an amount previously paid in respect of loss of earnings.
(g)The Applicant has, since the first accident in 1982 been in receipt of make-up payments, being the difference between what he would have earned but for his work-related injuries. There was, some three years ago, a dispute between the Applicant and the Respondent as to the quantum of the payments to which the Applicant was entitled and which resulted in an application to this Tribunal by the Applicant. That application resulted on the affirmation (by consent) of the relevant decision by this Tribunal (Senior Member Allen) on 25 August 1997. (T44)
(a) At the outset of this matter Mr Graham conceded that the only injuries which are relevant for the purpose of this hearing are those set out in clause 2(a). This is so because in respect of all of the other injuries the Applicant has received compensation and has recovered from those injuries.
(b)In respect of the neck injury, a claim for compensation is precluded having regard to section 48(4) of the Safety Rehabilitation and Compensation Act 1988 which reads as follows:
(4) Compensation is not payable under this Act to the employee in respect of the injury, loss or damage, or to, or for the benefit of, the dependant in respect of the injury that resulted in the death of the employee, after the date on which the damages were recovered by the employee or by, or for the benefit of, the dependant, as the case may be.
As Mr Johnson noted, that injury was a separate injury which was fully compensated and so that it cannot figure in any calculation under the combined value tables. (The Tribunal notes in any event that the Applicant has recovered from his neck injury).
(c)As a result, the only issue is whether the injuries to the Applicant's lower back in 1982 and 1988 (coupled with the level of damage to his right leg) are such that the Applicant has sustained permanent impairment, and for which it is necessary (inter alia) to have regard to the relevant tables.
Part B : The evidence of the Applicant
The Applicant stated that he commenced work with the Respondent in August of 1982. He had worked as a spring maker for about 15 years after he left school when he was 15. He then worked as a labourer truck driver with the Bankstown Council for a year or two. He was a self-employed truck driver for four years before he started work with the Respondent. (He sold his truck and business before commencing work with the Respondent.)
The Applicant was initially employed by the Respondent as a driver. In 1996, he became a postman, delivering mail on foot to a full round of houses. From 1988 onwards, his duties were confined to delivery to one half of a normal round.
Prior to 1998 he moved indoors into a sorting position; this arose in particular when the Respondent initiated the delivery of mail by motor cycle. He explained that he was involved in private box sorting which dealt with redirected and misdirected mail. The mail comes to him in a tub (unsorted). He separates the mail and puts it in standard order, puts the appropriate labels on it and makes sure that it is on the trolley for removal by the relevant 'vehicle'.
The Applicant explained that the Respondent had installed 'Future Post', a large sorting machine at Strathfield which did not operate as planned. As a result, there was a considerable volume of misdirected and redirected mail to be dealt with. He is the only person in his branch (Croydon Park) who deals with such mail and accordingly, he works a full shift every day, which is eight hours on each Monday, seven hours on each Tuesday, Wednesday and Thursday and seven hours and forty-five minutes on each Friday.
In his evidence to the Tribunal, the Applicant stated that in October 1982, two months after he commenced work with the Respondent, he was unloading bags of mail at Granville and one of them was heavier than the rest. He did not pick the bag up properly and pulled the lower right side of his back. He had three or four days off work and consulted a Dr Peter Goldman who recommended physiotherapy. The Applicant was paid compensation by the Respondent for the injury suffered. He returned to work and continued in his normal duties as a truck driver up until 1986. In examination in chief, the Applicant was asked about his knee injury in 1983 and the claim he made for his right ankle injury in 1985. He stated that these injuries do not trouble him any longer.
10. The Applicant began work as a postal delivery officer in 1986. On a rainy day on 4 July 1988 he approached a house in order to deliver a registered article which required a signature; he slipped on the patio which had glazed and polished tiles; he landed on his right buttocks. The Applicant reported the accident to the postal manager when he returned to the Respondent's branch. He saw a Dr Presiens who recommended physiotherapy, and also referred him to Dr Shane Wardell, an orthopaedic surgeon. The Applicant saw Dr Wardell two or three times; a cat-scan and X-rays were taken. He was off work for about a week and received compensation for the time during which he did not work.
11. The Applicant gave evidence that after his fall, he found it "difficult to drive for a length of time, my leg would go to sleep…my fingers going to sleep on the right hand, numbness of the right arm." He also said that his problems with his right leg commenced as a result. In his description of what he felt in his right leg, he stated that "It would go numb in the calf, it would lock up, it was a ball in it, it would just - and I had pins and needles in my legs, they just - amount of shock, come like electric shock, hit me in the back and run down my leg." He further said, "… I'd have a knotting – heaviness of the leg and a knotting in the calf muscle … a knotting, it used to get like a ball and then I had intermittent shocks like someone's put electric – electricity shock through my back and it would run down my leg."
12. The Applicant continued "…somewhere along the line I was directed to the CMO". Dr Sandra Graudins, the Commonwealth Medical Officer, in her report dated 17 November 1992 (T20) recommended that "1) He is fit to continue his current duties. 2) He is fit for duties not involving lifting greater than ten kilograms and no repetitive or prolonged bending and twisting. 3) These restrictions are likely to be permanent." The Applicant recalled that these restrictions were implemented no more than three months after the accident. He has been on such restricted duties since 1988 and they continue to the present time. It was at this time that he was taken off a full round and put on to a half-round. He receives make-up pay each fortnight.
13. The Applicant continued consulting Dr Presiens after 1988 until his practice was sold. The Applicant then consulted Dr Wong, then Dr Ken Lee (a general practitioner and not to be confused with Dr Y K Lee, an orthopaedic surgeon) two or three times a year. When physiotherapy was required, he would consult Dr Wardell. He then consulted Dr George Kalnins, an orthopaedic specialist; as the Applicant said in his evidence, "I went to see him (Dr Wardell) after the initial consultations but he ceased doing backs and only wanted to do necks." The Applicant consulted Dr Kalnins once only, "Because these people rejected my Work Cover Certificate". When asked by Mr Graham whether he went to see Dr Kalnins for a certificate, the Applicant answered, "Because Shane Wardell wasn't acting on facts." Mr Graham explained to the Tribunal that a work cover certificate would be required in relation to fitness for work at a given time. On 22 September 1995, the Applicant commenced consultations with Dr Ian Meakin, an orthopaedic surgeon, and continued consulting him until just prior to his motor accident.
14. The Applicant has at the request of the Respondent, been seen by a number of doctors over the years. The Applicant saw Dr Joan Chen, a consultant in occupational medicine in 1993 and thereafter; Dr Dwight Dowda, a consultant in occupational physician was consulted twice in relation to his back problems and rehabilitation; Dr Robin Chase, an occupational physician was consulted for rehabilitation; he was recently referred to Dr Robert Cameron, a consultant surgeon; Dr Gregory Carr, a rheumatologist has also bee consulted.
15. In respect of the motor accident::
(a) The Applicant was involved in a motor accident on 15 June 1999. Mr Graham asked the Applicant to describe to the Tribunal the events after the accident. He replied, "… at the time of the accident I was a bit nervous and shaken up…I was traumatised to a degree … saw Dr Ken Lee… and obtained a sick certificate … when I went back home, my son said, Dad you come home from work, it's compensation. So I went back the next day and received a work cover ticket. And then he sent me to book into Dr K, Ky (sic) Lee…"
(b) He went to see Dr Y K Lee, an orthopaedic surgeon 9 days after the accident and told the doctor that he had hurt his neck in the injury and aggravated his back problem. The Applicant said, "I said to the doctor, the pain in my neck and my back seemed to be worse than what it was before the fellow ran up the back of me with his car."
(c) The Applicant continued, "…the doctor gave me a month off work. … he gave me Panadeine Forte to take, and I consulted my physio and I rested up for over a month … the back pain subsided back to the normal pain that was prior to the car accident."
(d) Mr Graham asked the Applicant whether he would confirm that after a month or so, the problems he had had with his back had settled back to the condition it was in after 1988 and prior to June 1999. (The nature of the injuries suffered by the Applicant are contained in the the Motor Accident Personal Injury Claim form dated 19 August 1999 (Exhibit A1). The Applicant had claimed for pain in his neck and right shoulder but made no mention of his back. He explained that this was so because his back pain had subsided by that time.
16. The Applicant's work duties were further restricted after his motor accident. A workplace assessment review conducted by Heydi van Mourik, occupational physiotherapist, dated 4 August 1999 (T57) stated that the Applicant was "Fit for suitable duties with permanent restrictions, no lifting over 5 kg between waist and shoulder level, no lifting over 2 kg above shoulder level, avoid frequent reaching above shoulder height (Report of Dr Chase 9/7/99)."
17. Specifically as regards the back injury:
(a) The Applicant claimed that his back was worse after the injury of 1988. When he was asked about his back in terms of flexibility or movement, he replied, "… I'm always guarded. I can't move as free as I would like to be able to move and I am fearful if I go upstairs…I don't like being in a crowd with people behind me because I am nervous they're going to bump into me and I am going to be unsteady and that's my lower back, yes."
(b) When the Applicant was asked about having to bend over at work or home, he answered, "…I stop on my knees. …you must realise that I can't call everyone on the workplace floor to pick up that for me every minute of the day. I've got to attempt to do something, you know."
The Applicant explained that prior to his back problems, he would have picked things up from the floor in the normal fashion, "Now I've got to guard myself when I get down." He demonstrated how he would do this. Dr Thorpe noted, "For the benefit of the tribunal, he has adopted a curious. He has not squatted. He's gone half down on one leg and extended his other leg." The Applicant stated that he felt comfortable going down that way.
(c) The Applicant was then asked whether he sat or stood when he was at work, he replied, "At work I stand all day. … By the end of the day I am locked up and it doesn't help me now since my ..... bending my neck because I am looking down like that all day and it sort of just paralyses me."
The Applicant was asked to explain what he meant by 'locked up'. He replied, "…I feel like I've got to stretch myself backwards and try to loosen up but I can't. It is just like a board."
(d)The Tribunal then asked, "… Why do you have to stand up? Why can't you sit down at a table with a big volume of post before you and you sort it. Misdirected goes there, redirected goes there. What law says, you have to stand up?" to which the Applicant replied, "…It was only a week or so ago that they put this table you are talking about into my facility because the manager prior to that wanted no part of it.… I can sit if I wish to but it aggravates me to sit. I find I get more comfort standing. ..." He then told the Tribunal that he was currently sitting in agony in the hearing as he had sat for too long. He claimed that he could only sit for an hour before he had problems .
18. Specifically as regards to the Applicant's leg:
(a) The Applicant told the Tribunal, "Everyday life I have discomfort. I have heaviness. I have unsteadiness particularly when I am in my shower recess. … I feel unsteady if I take this other leg off the ground and put the weight on this one I am frightened it is going to give way on me "… I find I can walk but … I don't get this leg as high enough as the other at times because I hit the high part of the ground and I trip sometimes. …if I could use a staircase now I've got to guard myself…"
(b) The Applicant consulted Dr Ken Lee about a fortnight ago and he had two days off sick. He explained, "Future post does not perform in the way it should, the sorting machine, and I was compelled to stand (Tribunal's emphasis) and do the activity non stop for nearly two weeks, and in the end I just couldn't tolerate it any longer, and …" (He was paid compensation for his time off).
(c) The Applicant had indicated earlier on in his evidence that he preferred standing. He provided by way of explanation, "That's true, but before the super post went the way it has gone, I could have intermittent breaks, apart from my meal break. If I found pain coming on, I would just go out and stand in the corner…" He added that there has been an increase in his work load in the last six months.
19. The Applicant was asked in cross-examination whether he experienced any injuries to his back prior to 1982 to which he replied that he could not recall.
Mr JIs it your recollection that you more or less continued to work between 1982 and 1988 without needing to take time off your work because of your back?
AI think I may have had some incidents with my back prior to '82 and '88. …
Mr JPrior to '82 ?
ANo, from '82 to prior to '88. …
Mr JAnd if you took any time off it would only have been a couple of days here and there?
AThat would be so. …
Mr JWith respect to these intermittent days off, those intermittent days off didn't coincide with any particular event as far as you can recall?
AI would have put down on my compensation form. It would have been to back action of '82. …
Mr JAnd what I am putting to you is, those odd occasions, as far as you can recall sitting here now, didn't coincide with any particular event?
AIt would have been from my day's activity at work.
Mr J When you are a truck driver at the time, you are carting mail bags around all day. …you are simply trying to link your problem with your work?
AWell I am sure that's where the problem comes from.
20. The Applicant was then asked whether he experienced back pain outside of work. In answer to questions regarding back pain experience whilst mowing the lawn, the Applicant replied "I couldn't do it"; driving his car, "Mm … " and sitting for long periods at home, he replied "That's true." The Applicant answered "I couldn't do it; Mm; and "That's true"
This resulted in the following exchange:
Mr JSo there are events, both inside and outside the work place which have caused you back pain, that's right isn't it?
ANo, I disagree.
Mr JWell, sir, you are not suggesting that you mowed lawns at Australia Post are you?
ANo.
Mr JAnd you are not suggesting that you drive your own car at Australia Post, are you?
ANo.
Mr JAnd your (sic) are not suggesting that you sit at home while you are in the course of your duties at Australia Post, are you?
ANo.
Mr JAnd you've told us that doing each of those things, you've occasionally had increased back pain?
AI see where you come from now, yes.
Mr JSo I put to you again, your increases in back pain have happened both at work and away from work, that's right isn't it?
AThat would be right, yes.
Mr JWith respect to the 1988 incident, do you say that your ability to move your lower back…?
ANo, I think it's restricted.
Mr JIt's getting worse. … progressively getting worse over time?
AWell, I am getting older over time, maybe that's got something to do with it, I don't know.
21. The Applicant was also asked about the non-disclosure of his leg injury which resulted in the following exchange:
Mr JWith respect to the 1988 incident when you suffered that fall, you didn't complain then about any symptoms in your leg, did you?
ANo - I don't know whether I did or I didn't. So you are telling me, you've got the certificate….
Mr JAs far as you can recall now, it's true isn't it, that when you first suffered this incident in 1988, you didn't suffer any symptoms in your leg?
AWell if the certificate says that, that's what I put down. I can't recall. I don't remember.
Mr J Do you agree that what you were reporting to the doctor at the time and, indeed, what you've reported on this form is injury to the right hip and right shoulder, nothing about the leg and, indeed, nothing directly about the back on these documents? That's right isn't it?
AWell, the hip is where I got injured…
Mr JMy question to you, sir, is, however, at this time you're not complaining about the leg are you?
AHere I'm not, apparently not, no.
Mr JSir, at the time that you filled out that claim you weren't complaining about pain in your leg were you?
AAt that stage, no.
Mr JAnd you weren't directly mentioning pain in your back either to Australia Post were you?
AI'm sure I was.
Mr JCan you show me where in your words you've complained about pain in the back?
AWell, the hip region to me is where my injury is. Right? And my postal manager says, lower back pain, shoulder…. Perhaps the doctor just uses terminology that's different to what I was explaining to him. There it is...
Mr JWell I suggest to you, sir, that if you told the doctor that you had pain in your back he probably would have said pain in the back. You told him you had pain in the hip. You're proven to do that?
ANo, my back pain is here, that's what I told you, the sacroiliac joint area. So whether that's classed as back or hip or lower back or middle back I don't know but that's what it is.
Mr JI would like you to assume that when you came to see Dr Wardell ….. you told him that your right leg would go numb if you sat for more than two hours and that this was particularly noticeable driving a motor car?
AMm.
Mr JYou didn't tell the doctor, as far as his report tells us, of there being any pain in the leg. That's right, isn't it?
AWell, what I discussed with the doctor if it goes numb, I would have imagined I told him there was pain in my leg too.
Mr J Well, you say I imagine, the fact is there's a difference between numbness and pain?
AYes. …
Mr JAnd I suggest to you…doctor doesn't talk about pain in the leg, only that your leg goes numb.
22. The Applicant then asked about the movement of his spine which resulted in the following exchange:
Mr JYou saw Dr George Cowdens on 14 September 1990 Dr Cowdens said that on examination you were able to reach down with your fingertips to the level of your toes flexing your spine. Assuming that's what his report says you would not dispute that that's what you were able to do on that occasion? he said that all other movements of your spine were full. Again, you would accept that if that's what he says?
AIf he said that I will accept that
Mr JThen when you saw Dr Cameron in 1999, in particular on 5 October 1999, he also tested your spine. Dr Cameron said that on examination forward flexion of your spine, allowed your fingers to reach high shin level while extension, lateral flexion to each side and rotation. That is, the other spinal movements were within normal limits. Again, if that's what he says you wouldn't dispute that would you?
AI would not, no.
23. Mr Johnson then said to the Applicant that it would be an exaggeration for the Applicant to suggest that his spine was such that he felt locked up and unable to move it at all. He quoted from the Applicant's examination in chief:
Mr J You said you feel lie (sic) a board" that carries the connotation that you can't move your spine at all, doesn't it ?"
AMaybe I phrased it wrong. I can move my spine but I feel very stiff and locked up. That's what I was trying to get across
Mr JYou see, you can in fact move your spine to the extent that you've demonstrated on examination by the doctors. That's right, isn't it?
AYes, that's true, but I hadn't been working that day.
24. (a) The Applicant had told the Tribunal in examination in chief that he had a table at work but he stood as a matter of preference. Mr Johnson continued:
Mr JYou knew very well, Mr Cain, that if you went along and you complained to an occupational health assessor that a table would be provided. You knew that didn't you?
AThe occupational health assessor attended me several times in that - she even had a special rack made up for me but there was no forthcoming table because the manager refused to have it in the…
Mr JSo once again I suggest to you that if you stand all day, which is something that you do as a matter of preference, it is an exaggeration to suggest that at the end of the day you feel locked up or like a board?
AWell, I disagree with you.
25. (a) The Applicant had demonstrated to the Tribunal his ability to pick things up in the examination in chief. This resulted in the following exchange:
Mr JIn evidence this morning you were asked about picking things up?
AMm
Mr JAnd you said now I have to guard myself and you got down on the floor with, half down on one leg and extended the other. Do you agree with that?
AYes
Mr JNow, firstly, I suggest to you that that movement wouldn't help your back at all. What do you say about that?
AWell, it seems to help me.
Mr JI suggest to you that when you say that you're having difficulty picking things up because now I have to guard myself, what you really mean is that not that picking things up causes you pain but rather you refrain from doing things because you think they might cause you pain ?
AThey do cause me pain.
Mr JI'm suggesting to you when you say, now I have to guard myself, what you mean is I refrain from doing things because I believe if I do them that might cause me pain. Is that right or not?
AThat may be so, yes, might cause me pain and it often does cause me pain.
(b)Mr Johnson then read from the reports by Dr Cameron:
Mr JHe drives a car without restriction, he walks for 20 minutes three times a week ...(reads)... without particular difficulty… So you were in fact driving a car without any restrictions?
AI certainly never drove my car further than 20 minutes, to and from work
Mr JYou told him you were driving your car without restrictions?
ATo and from work.
Mr JYou told him you were working for 20 minutes three times a week, so you were walking for 20 minutes three times a week?
AWhen I could, yes.
Mr JYou told him you were jogging occasionally?
AVery very rarely.
Mr JUntil your car accident?
AVery rarely
Mr JHe says that you said that you were weary going up steps because of weakness?
AWell I've said to you I was always weary of steps
Mr JBut you managed without particular difficulty and so you did in fact manage to walk up steps without the pain, that's right isn't it?
A Well I'm weary that I'm going to trip over on steps
Mr JYou are fearful you might trip over you say?
AThat's true, yes
Mr JLeaving aside any fear that you might have about tripping over, you don't have any problem with the steps at all do you?
AI do, I can't get my leg up high enough at times. I negotiate the steps but I'm constantly fearful that I might trip
Mr JWhat is that difficulty you say you have with steps?
ABecause I'm on guard, I stand close to the rail, I can't walk up the centre of the staircase.
Mr JOnce again you say because I'm on guard. Putting aside any fear that you might have, or may not have for that matter, putting aside any fear that you might have - - - ?
AI'm sorry, I understand you now, yes.
Mr J you're able to go up steps that's right isn't it?
AYes, that's true, yes.
In regards to alleged right leg symptoms suffered by the Applicant, the following exchange resulted:
Mr JIn describing your problem with your right leg before you said that your calf would lock up, that you get pins and needles in the leg, that you had a heaviness in the leg, a knotting of the calf muscle and that it was like electric shocks running down the back of the right leg. Do you remember giving that evidence?
AWhen it come from my back. When it hit me in the back it run down me leg. …
Mr JNow, we've already agreed that in 1988 for instance when you complained first about this incident at work you didn't say anything about your right leg, that's right isn't it?
AThat's true
Mr JWith respect to these symptoms that you've described this morning that I've just read out to you again, do all of these things occur together? … The calf locking up, pins and needles in the leg, heaviness in the leg, knotting of the calf muscle like electric shocks running down the back of the right leg, does all of that happen together?
ANo
Mr J So those things happen separately from each other do they?
AThey come intermittently.
Mr JThey come intermittently and separately from each other?
ANo, the heaviness and knotting is a combination and then comes the pins and needles after it.
Mr JSo you get heaviness and knotting first and then the pins and needles after that, is that right?
AOr it may vary. It may go the other way. … Well, I've just told you, it happens both ways.
Mr JYou're telling us, are you, that sometimes you get a heaviness in the leg and knotting of the calf muscle together and then pins and needles later, is that right?
AAt times. …
Mr JYou tell us that sometimes you get pins and needles first and then heaviness in the leg and knotting of the calf muscle later, is that right?
AYes, that would be right.
Mr JHow about electric shocks running down the back of the leg? Does that coincide with knotting in the calf muscle?
AThat happens not constantly, it will just come as a shock out of the blue. … but I'd say the knotting is more profound than the shocks.
Mr JYou are unable to tell us whether the two occur in tandem, whether the two occur in combination?
ANo, the knotting tends to be there constantly or mostly and the electric shocks occur intermittently.
Mr JWell, if the knotting is there constantly, I don't quite understand how you are able to tell us that sometimes that precedes the pins and needles and sometimes it comes after the pins and needles?
AI say constantly. Well I didn't mean that constantly, 100 per cent constantly, but the majority of the time it is there first.
Mr JEither it is there constantly or its not there constantly?
AWell I'll say it's not there constantly, if that clarifies that…..
Mr JIt seems that you have a tendency to be a little bit inaccurate in describing what's happening to you. Do you agree with that?
AWell, the way you're wording it to me perhaps you're right, yes. …
Mr JThe pins and needles in the leg, is that associated with the numbness in the leg? Does that happen at the same time as the numbness in the leg?
AIt appears at that time, yes.
Mr JWhen you speak of heaviness in the leg does that mean the same thing as numbness in the leg?
AI would say yes.
Mr JWhat you've described as electric shocks down the back of the right leg, does that occur with the heaviness and numbness or not?
AIt comes when it feels like coming, whether the numbness is there or it's not there it will just hit, the shocks ….the knotting is there when it's there, it comes and goes. It's there and then if I get an electric shock, an electric shock hits, it's like a power shot, op op and it's gone. …
Mr JIt's only there sometimes?
ANo, it's constantly. Most, the majority of the time it's there. It's not there now. After a day's work it's there.
Mr JDo you ever get cramps in the calf?
AI get cramps, oh well, it's a lock up, I'd say I do get cramps in the calf, yes. Very severe cramps, I can't get out of bed with them in the morning at times
Mr JI suggest to you that these complaints that you've described - you might fell (sic) unable to answer this but I suggest to you these particular leg complaints that you've described have got nothing to do with your back?
AWell, I spoke with the doctor and the doctor"
Mr JThese various feelings in the leg that we've described they just come on without explanation, do they?
AAfter a day's work they come upon me. They're there of a morning when I get out of bed.---Yes, they are, not all of them.
Mr JOne second you tell us they're there at the end of the day?
AThat's right.
Mr JAfter working hard they're there?
AThat's right.
Mr JThen you tell us I get out of bed of a morning and they're there?
AThat's right. I have my foam in my car to ease the ache and the pain before I step foot on the ground of a morning.
Mr JMr Cain I suggest to you that these feelings that you get in your leg aren't particularly associated with any activity. What do you say about that?
AWell, I disagree.
Mr JThat they're as much associated with your sleeping at night as they are with anything else. What do you say about that?
AWell, I don't sleep a hell of a lot at night. I lay awake with the pain. I sleep possibly 3 or 4 hours at the maximum of a night.
26. In summing up his cross-examination, the following exchange took place between Mr Johnson and the Applicant:
Mr J"I suggest to you, Mr Cain, with respect, that to bolster your case here today you're firstly making your symptoms out to be worse than they are. What do you say to that?
AI disagree with you.
Mr JI suggest to you further that you're making a deliberate effort to associate these feelings with your work as opposed to your life in general?
AWell, I disagree with you."
Part C : MEDICAL EVIDENCE
(a) Substantial medical evidence was available to the Tribunal relating to the claim for permanent impairment in relation to a lower back injury and the degree of permanent impairment as it relates to the Comcare guidelines.
(b) The Applicant suffered two back injuries, the first on 25 October 1982 and the second on 4 July 1988. Subsequent to the injury on 4 July 1988 the applicant complained of a problem with his right leg. The Applicant contended that it was the injury to the back which brought on the problem in his right leg. For the purposes of this application the right leg relates to or is part of his back injury and should be taken into account when assessing permanent impairment.
(c) The neck injury and injury to the right shoulder sustained in a motor accident on 15 June 1999 or any consequences were not pursued in respect of permanent impairment. This applied equally to any possible contribution or aggravation to his lower back condition that may have been sustained in the motor accident. Also the injuries sustained to the right knee in 1993 and to the ankle in 1985 did not require consideration by the Tribunal.Dr Ian Meakin and Dr L Hughes, both, orthopaedic specialists gave oral testimony. Dr. Michael J Davies, consultant neurosurgeon, although served with a summons could not be contacted during the course of the hearing and did not attend. The Respondent did not require him for cross-examination and the parties agreed to rely on his reports.
Numerous medical reports were available to the Tribunal; they included reports by Dr F S Waddell (T9), Dr P J McGrath (T10), Dr P M Parnell, CMO (T12), Dr George Kalnins (T13, T16), Dr S H The, CMO (T18), Dr Dwight Dowda (T19), Dr Sandra Graudins CMO (T20), Dr Joan Chen (T21), Dr Gregory Carr (T42), Dr Y K Lee (T50, T58, T66), Dr R Chase (T53), Dr R Cameron (T61), Dr M J Davies reports (Exhibits R1, R2 and R3), Dr Lloyd Hughes (R4), Dr I Meakin 16/5/00 (Exhibit A5) and the following reports from Dr I Meakin (T31, T32, T40, 45, T46).
(a) The nature of his lower back condition was described in a number of ways. A CT scan of the lumbosacral spine (T8) (undated but referred to elsewhere as having been taken in 1989) reported a bilateral pars defects at L5; a further CT scan on 25 September 1995 reported spondylosis of L5 with spondylolisthesis of L5 with respect to S1. No focal disc lesion was present.
(b) Dr Davies diagnosed the applicant as having lumbar spondylosis, together with bilateral L5 pars defects and minimal slip of L5 on S1. Dr Hughes diagnosed degenerative disc disease and also a spondylolisthesis at the L5/S1 level. He considered that the spondylolisthesis develops in childhood due to a stress fracture and that the degenerative disc disease to be constitutional. Dr Meakin diagnosed a long standing congenital bilateral pars interarticularis defect with low grade instability to his lower lumbar back. Like Dr Hughes he considered it most likely to have resulted from a stress fracture as a child. Dr Cameron relied on the radiological report of constitutional pars defects. Dr Dowda made the same diagnosis.
(c) Dr Joan Chen was the only doctor to express a substantially different opinion. She considered that Mr Cain's back pain probably related to dysfunction of the right sacro-iliac joint. She considered that the spondylosis is asymptomatic and that the ongoing right sided low back pains were more likely related to intermittent inflammation and dysfunction of the right sacro-iliac joint.(a) The Tribunal accepts that the applicant has a pars interarticularis defect with minimal displacement that most likely developed in childhood and can be considered a constitutional abnormality.
(b) The task before the Tribunal is to determine if the injuries sustained in 1982 and 1998 caused a permanent impairment to the back and if so, whether the impairment is 10% or greater. As an alternative, it is conceivable that the Applicant suffered a permanent aggravation of his underlying back condition, and thus resulting in a permanent impairment.(a) The Applicant also includes the right leg as part of the back and again it was the task of the Tribunal to consider the connection or nexus between the back and the right leg condition.
(b) The right leg condition was described in a number of ways by the doctors. Dr Davies considered the leg impairment relates to one of the Applicant's back injuries which occurred whilst he was workingfor the Respondent, (either in 1982 or 1988). This discrepancy in dates is due to the Applicant not being sure at the time he consulted Dr Davies. Dr Davies noted that the Applicant complained of numbness and tingling affecting the posterior aspect of his right calf and thigh.
(c)Dr Lloyd Hughes reported that the Applicant had no complaints of any pain in his legs at all and in cross examination did not consider the numbness in the Applicant's legs would have been the result of an injury.
Dr Meakin in his report dated 23 November 1998 stated that following the back injury on 4 July 1988, the Applicant continued to suffer discomfort in his low back with problems affecting his right leg since that time and under cross examination he stated that the impairment in the leg is bound to the impairment in the lumbar spine and It is part of that pathology. The following exchange resulted:
Mr JYou would expect that if he was making a complaint at the time about back pain and if the back injury was such that it also had consequences for the leg that he would be making complaints there and then about pain or sensory disturbance in the leg?
Dr MeakinIt is usual – that's the usual presentation but the symptoms can present – the leg symptoms can present or be complained of at a later date but one usually follows the other if they occur
Dr Meakin also opined that the transient leg symptoms were associated with the underlying pars defect.
(a) It was not completely certain whether the Applicant suffered a back problem prior to 1982. In examination in chief, the Applicant had stated that he had no back problems prior to that date. In cross examination he said that possibly he might have had some discomfort, but that he couldn't recall.
(b) It was not clear to the Tribunal whether the leg problem developed at the time of the accident or some time later. The Tribunal accepts Dr Meakin's explanation that it can develop at the time or later on . The important issue is whether there is a nexus between the back and the leg condition.Dr Meakin considered that the Applicant suffered from a defect in L5 and that defect was aggravated first by the injury of 1982 and then again in 1988. In his report of 15 June 2000, it was his opinion that this patient demonstrated a ten percent (10%) permanent impairment of his lower back – as per Comcare Table 9.6, and a five percent (5%) permanent impairment of his cervical neck and a five percent (5%) permanent impairment of loss of efficient use of his right leg according to table 9.5 of the Comcare table. Due to the combined Value Charts (Table 14.1 Comcare tables) the above percent values assessed at nineteen percent (19%) permanent loss of the whole body. As agreed by the parties the neck was not before the Tribunal and that reduced his permanent impairment assessment to 15%
Dr Meakin agreed that any association with the events at work is based upon his history. His opinion was that the injuries of 1982 and 1988 made the asymptomatic underlying defect symptomatic and that the effect continues. This aggravation he considered as roughly half due to the congenital defect and half attributable to the accidents.
On further questioning and in particular when asked to refer to records by Drs Hughes, Kalnins and Cameron who recorded the extent to which this Applicant's movements were restricted, Dr Meakin agreed that this was a "minor loss of movement". This would then equate to a 5% permanent impairment.Concerning the right leg Dr Meakin agreed that under Table 9.5 it was not possible to give an impairment rating of 5% and that it was either 0% or 10% When asked about the relationship between the back and the leg Dr Meakin stated:
I think in this particular patient I bound the spinal symptoms and the leg symptoms as one
Dr Lloyd Hughes in evidence considered that the two incidents at work may well have temporarily aggravated the underlying condition of spondylolisthesis and degenerative disc disease. When addressing Tables 9.6 and 9.5 "I am unable to assess any degree of permanent impairment in relation to his neck, back or lower limbs."
Under cross-examination he agreed that the underlying constitutional problem could be made symptomatic by the injuries in 1982 and 1988, but that this would have been temporary.
Dr Hughes was not able to relate any problems with the leg to the back injuries. He attributed numbness to the leg to the underlying condition due to either bulging discs or the spondylolisthesis.Dr Davies three reports were before the Tribunal. He found impairments of the lumbar spine, the right leg and the cervical spine and in his report of 13 September 2000 he finds the cervical spine impairment and the leg impairment to be related to work. He considered the injury that occurred in 1982 unmasked his previously undiagnosed lumbar spondylosis and rendered this condition symptomatic. The incident in 1988 caused further aggravation of his lumbar spondylosis. However,"I think his ongoing complaints in relation to his lower back are related to his underlying spondylosis and not due to any ongoing aggravation related to his employment with Australia Post".
In his report of 13 September 2000 he gives a whole person impairment rating of 13% (10% loss of efficient use of the right leg and 3% impairment of his cervical spine) due to his employment with the Respondent.
There appears to the Tribunal an Inherent contradiction in his report in that if the leg problem is linked to the back and if there is no ongoing aggravation to the back, what then is the genesis of his ongoing leg impairment? Another problem is that Dr Davies used "loss of efficient use of the right leg", which is clearly not the correct test for the purposes of Table 9.5Dr F.S. Waddell Orthopaedic Surgeon on 4 April 1989 (T9) wrote that the spondylolisthesis has been aggravated and was causing on going symptoms. Dr P.J. McGrath on 8 June 1989 (T10) considered Mr Cain to be suffering lumbar spine strain and his employment contributed to the contraction of the condition and also the aggravation and recurrence
Dr George Kalnins Orthopaedic Surgeon on the 17 September 1990 (T13) stated that having regard to the Applicant's history it would appear that his lumbo-sacral junction is more susceptible to strain. In a supplementary report on 26 November 1990 he stated that the Applicant sustained a lumbo-sacral strain in a spine which is predisposed to this as a result of the presence of an L5-S1 pars interarticularis defect. His examination revealed essentially normal spinal movements (page 49).
Dr Dwight Dowda, Consultant Occupational Physician in his report of 23 August 1991 (T19) said it is likely that Mr Cain's condition of spondylolisthesis was aggravated by the fall in 1988 and possibly by the sudden lifting of a heavily laden mail bag in the incident described in 1982. In summary Dr Dowda considered Mr Cain to have a lower back condition, which at the present time appears stable, but occasionally still creates troublesome symptoms.
Dr Joan Chen, Consultant in Occupational Medicine on the 19th October 1993 (T21) considered that the spondylosis may have occurred during his fall in July 1988. The spondylosis is asymptomatic. However his ongoing sided low back pain is more likely related to intermittent inflammation and dysfunction of thr right sacro-iliac joint. Dr Chen found essentially a full and normal range of spinal movements. She also noted a history of pain in the right leg subsequent to the 1988 fall.
Dr Dwight Dowda in a further report on15th April 1997 (T34) reported that Mr Cain presents with a lumbar condition which has not changed significantly from when he had seen him previously. He was able to squat with a straight back and recover from the squatting position unassisted. Full details of his examination are at T34, page 4.
Dr Dowda stated that that it is to be expected (and whether in his occupational activities or in his activities of daily living) that from time to time he can have exacerbation of symptoms which he associates with his lower back condition. Such an exacerbation is likely to be of a temporary nature, settling subsequently.
Dr Gregory Carr, Rheumatologist saw the applicant in 5 December 1997 (T42). Dr Carr's physical examination is recorded at page 3 of his report and there is also reference to pins and needles in the right leg and knotting of muscles in the right calf. Dr Carr considered the aggravation of the back condition to be still present and probably won't resolve in time. Dr Y.Kai Lee, Orthopaedic Surgeon in his report of 24 June 1999 considered the previous back problem was aggravated by the Motor Vehicle accident on 15 June 1999.
Dr Robert Cameron in his report of 5 October 1999 (T61) reported that physical examination revealed a minor restriction of back movement but no abnormality in the back or lower limbs. He assessed the percentage level impairment resulting from the injury of 1982 in accordance with table 9.6 as five percent whole person impairment. Dr Cameron did not appear to address the permanent impairment subsequent to the 1988 accident.In summary of all the medical evidence the Tribunal is satisfied that the Applicant injured his back in two incidents in 1982 and 1988. This is not disputed by either party. The Tribunal has abundant information from almost all the doctors that the Applicant has an underlying constitutional disorder of the back due to a pars interarticularis defect which he was either born with or sustained as a crush fracture as a child. This has resulted in an early spondylolisthesis. Most of the medical evidence is to with the effect of the two accidents on a man with this constitutional defect to his lower back.
The Respondent contends that an injury would have to be an aggravation and that this aggravation must be permanent if the Applicant is to succeed. The Applicant considers that as a result of injuries to his back and right leg he is entitled to compensation on a permanent basis.Under Section 24 of the Safety, Rehabilitation and Compensation Act 1988 for permanent impairment the Applicant must achieve a 10% threshold. Despite difficulty with the time of onset and the different descriptions of the leg problem the Tribunal is prepared to accept that any leg problem is part of the back problem and can also be included in any assessment for permanent impairment.
The work situation at the Respondent was modified subsequent to the 1988 injury. A work place assessment 26 July 1989 (T11) " No lifting over 10kgs (no delivery run possible as a consequence) together with recommendations. Assessed for Fitness for full duties on 8 August 1990 with a recommendation that physiotherapy can be stopped and that he be monitored and that his outside activities should be increased if possible. Without going into detail from T14 through to T41 there are many reports and workplace assessments concerning Mr Cain.
The Respondent said it had bent over backwards to in providing appropriate work situations. It was put in addresses that there was criticism of the employer. A workplace assessment dated 15 May 1998 (A4) was put before the Tribunal.
The Applicant in evidence considered that suggestions made by the occupational physiotherapist were basically not carried out.It seems to the Tribunal that Respondent had been very reasonable in its workplace practices and responsibility to the applicant. The situation may be viewed differently by the applicant but there was sufficient information before the Tribunal to be satisfied that proper attention had been given to the work situation and all reasonable rehabilitative measures have been undertaken.
Back ImpairmentDr Cameron gave 0% permanent impairment for the back. Dr Davies whilst giving an impairment of 10% for the lumbar spine negated this assessment in his report of 19 July 2000 he states "However, I think his ongoing complaints in relation to his lower back are related to his underlying spondylosis and not to any aggravation related to his employment with Australia Post"
Dr Meakin in his report of 15 June 2000 gave an initial assessment of 10% for the lumbar spine. However it became clear that he had difficulties with Table 9.6. He had taken into account X ray changes, pain and movement and when asked by the Tribunal to assess the back according to Table 9.6 taking into account only movement his response.
If you take into account only movement then as per the written word there this is a five
Also when asked to assess attributibility he attributed to 50% as constitutional and 50% due to the accidents, which results in one half of 10% or one half of 5% permanent impairment. Dr Lloyd Hughes found no permanent impairment of the lumbar spine.
The Tribunal considered the different assessments including Dr Meakin's clarification of his assessment at the Hearing. The other medical reports, whilst not including permanent assessments for incapacity did make reference to physical examination and range of movement and were also considered.
The Tribunal considers that the Applicant has a 5% permanent impairment of his back according to the Guide to Assessment as a result of injuries suffered on the 23 August 1982 and 4 July 1988 whilst employed by Australia Post.
Right Leg ImpairmentDr Meakin initially assessed the right leg impairment at 5% permanent impairment but when advised at the Hearing that there is no provision for a 5% impairment under Table 9.5, was unable to advance to 10% which was therefore recorded as 0% permanent impairment.
Dr Hughes and Dr Cameron gave no permanent impairment in respect of the right leg. Dr Davies became involved, as described by Mr Graham, in an internal contradiction. Accepting an interlinking nature of the of the back and leg problem, and aware of the fact that he himself had earlier discounted the back as being aggravated by his employment with the Respondent, he nevertheless arrived at an impairment of 10% for the right leg.
If the back and leg are related as indicated by Dr Davies and Dr Meakin (and accepted by the Tribunal), Dr Davies' assessment is illogical and cannot be accepted. In the same context Dr Davies has not followed the Guide to Impairment and has used the term "Loss of efficient use of his right leg at or above the knee".Similar to the assessment referable the back, all other medical reports available relating to the right leg were reviewed to assist in determining permanent impairment of the right leg. Taken as a whole the Tribunal is not satisfied that there is sufficient evidence to indicate that the Applicant has suffered any permanent impairment to the right leg as a result of the injuries received on 25 October 1982 and 4 July1988.
Any impairment therefore is only of the back, which has been assessed at 5% permanent impairment. This back impairment takes into account the right leg, which having been assessed at 0% means the back and leg together are assessed at 5% permanent impairment. This is insufficient to qualify for permanent impairment under Section 24 and 27 of the Safety Rehabilitation and Compensation Act 1988.
Part D Conclusion
Insofar as to it is necessary or desirable the Tribunal notes that the evidence of the Applicant was often unreliable. The Tribunal considers that the Applicant has exaggerated his injuries which are not nearly as bad as he would have us believe. His demonstration of posture indicates that he is far more agile than his oral evidence would indicate and that he is not by any means unable to continue working within the limits referred to in the medical evidence.
In any event medical evidence as reviewed in Part C leads to the clear conclusion that the Applicant does not succeed and so that the decision under review is correct and must be affirmed.
The formatting, line-spacing and in some cases punctuation in this decision leaves much to be desired and the Tribunal tenders its apologies to the parties in this regard. This occurred specifically because Dr Thorpe's appointment as a member of this Tribunal terminated at the end of this day, and despite hopes to the contrary; he has not yet been reappointed. It became necessary in consequence to finalise this decision as a matter of great urgency and despite our considerable effort there was not sufficient time to bring the decision in all respects into the desired form. It was important, for obvious reasons, that this decision be handed down prior to the termination of Dr Thorpe's appointment.
I certify that this and the 50 preceding paragraphs are a true copy of the decision and reasons for decision herein of Deputy President J Block and Dr MEC Thorpe, Member.
Signed: ....................[Kwai-Ling Wong]........................
AssociateDate/s of Hearing 16 and 17 October 2000
Date of Decision 14 November 2000
Counsel for the Applicant Mr John Graham
Solicitor for the Applicant Jones Staff & Co
Counsel for the Respondent Mr G T Johnson
Solicitor for the RespondentBarker Gosling
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